About
a
year
and
a
half
ago,
in
a
ruling
striking
down
the
Ohio
state
version
of
Chevron
deference,
the
conservative
majority
on
the
state
supreme
court
noted
that
“text
should
be
given
its
contemporaneous
and
customary
meaning.”
Yesterday,
in
a
4-3
opinion,
the
conservative
justices
decided
that
“boneless
wings”
can
have
bones
in
them.
Welcome
to
Buffalo
Wildly
Deadly
Wings!
Michael
Berkheimer
ordered
boneless
wings
from
a
restaurant
and
ended
up
swallowing
a
roughly
1-3/8
inch
chicken
bone.
It
tore
his
esophagus
and
caused
a
bacterial
infection
in
his
thoracic
cavity.
He
sued
the
restaurant,
the
supplier,
and
the
chicken
farm.
Rather
than
allow
a
jury
to
sort
out
liability,
the
state
supreme
court
ruled
that
no
jury
could
possibly
believe
a
boneless
wing
would
be
free
of
bones.
And
regarding
the
food
item’s
being
called
a
“boneless
wing,”
it
is
common
sense
that
that
label
was
merely
a
description
of
the
cooking
style.
A
diner
reading
“boneless
wings”
on
a
menu
would
no
more
believe
that
the
restaurant
was
warranting
the
absence
of
bones
in
the
items
than
believe
that
the
items
were
made
from
chicken
wings,
just
as
a
person
eating
“chicken
fingers”
would
know
that
he
had
not
been
served
fingers.
The
food
item’s
label
on
the
menu
described
a
cooking
style;
it
was
not
a
guarantee.
The
majority
is
a
bit
nebulous
on
the
limits
of
the
“boneless”
cooking
style,
but
if
you’re
thinking
that
one
of
its
hallmarks
would
be,
at
a
minimum,
a
lack
of
bones,
you
would
apparently
be
wrong
in
Ohio.
Astoundingly,
a
few
pages
before
this
passage,
the
majority
notes
that
the
cook’s
deposition
testimony
“explained
that
the
boneless
wings
were
made
from
pre-butterflied,
boneless,
skinless
chicken
breasts,”
an
odd
description
to
include
for
raw
chicken
meat
when
you’re
defining
“boneless”
as
a
cooking
style
and
not
a
straightforward
description
of
the
boniness
of
meat.
The
whole
point
of
this
“style”
argument
is
to
claim
that
the
plain
meaning
of
“boneless
wing”
is
not
that
it’s
boneless
but
that
it’s
made
with
breast
meat.
As
though
diners
ordering
boneless
wings
would
be
right
to
suspect
they
might
be
eating
chunks
of
bone-in
breast.
That’s
why
the
opinion
invokes
the
humble
chicken
finger
as
another
anatomically
incorrect
product.
Ad
bullshit
ad
astra.
But
kudos
to
defense
counsel.
Someone
over
there
said,
“What
if
we
contend
that
the
word
‘boneless’
means
‘bones?’”
And
rather
than
say,
“It
might
undermine
our
credibility
with
the
court
to
sound
like
we’re
fucking
idiots,”
the
partner
thought,
“Hey,
you
miss
100
percent
of
the
shots
you
don’t
take!”
In
dissent,
the
three
Democratic
justices
deployed
a
far
less
tenuous
grasp
of
the
English
language.
The
majority
opinion
states
that
“it
is
common
sense
that
[the
label
‘boneless
wing’]
was
merely
a
description
of
the
cooking
style.”
Majority
opinion
at
¶
23.
Jabberwocky.
There
is,
of
course,
no
authority
for
this
assertion,
because
no
sensible
person
has
ever
written
such
a
thing.
And
sensible
people
still
have
not.
Undeterred,
the
majority
continued
to
deny
plain
meaning
after
the
cock
crows.
[T]he
court
of
appeals
took
into
account
that
the
boneless
wings
were
prepared
by
cutting
a
chicken
breast
into
one-inch
pieces
that
were
then
fried….
In
this
way,
the
boneless
wings
were
analogous
to
a
fish
fillet—and
“‘everyone…
knows
that
tiny
bones
may
remain
in
even
the
best
fillets
of
fish.’”
But
note
how
the
word
“filet”
is
not
the
word
“boneless.”
A
filet
generally
means
the
cut
won’t
have
bones
—
though
the
term
is
not
synonymous
with
boneless,
since
it
actually
refers
to
the
technique
of
tying
the
meat
before
cutting
it
—
but
it
moves
the
goalposts
to
willy-nilly
conflate
“boneless”
with
“filet.”
While
diners
might
be
prepared
for
a
stray
bone
in
a
filet
of
fish,
they
wouldn’t
be
if
the
restaurant
instead
advertised
“boneless
fish.”
Instead
of
applying
the
reasonable
expectation
test
to
a
simple
word
—
“boneless”
—
that
needs
no
explanation,
the
majority
has
chosen
to
squint
at
that
word
until
the
majority’s
“sense
of
the
colloquial
use
of
language
is
sufficiently
dulled,”
concluding
instead
that
“boneless”
means
“you
should
expect
bones.”
(internal
citation
omitted).
Welcome
to
the
textualism
of
the
modern
conservative
legal
movement!
The
only
“contemporaneous
and
customary”
that
matters
are
the
contemporaneous
and
customary
policy
aims
of
the
Republican
Party.
Want
to
protect
businesses
from
lawsuits?
Boneless
means
bones.
Want
to
strike
down
the
federal
mask
mandate?
“Sanitation”
doesn’t
include
“sanitary
face
masks.”
Want
to
let
Donald
Trump
handle
nuclear
codes
from
Mar-a-Lago’s
toilet?
Then
“shall
nevertheless
be
liable
and
subject
to
Indictment,
Trial,
Judgment
and
Punishment,
according
to
Law”
means
“absolute
immunity
from
prosecution.”
It’s
just
an
elaborate
game
of
Balderdash
except
the
stakes
include
choking
to
death.
Whether
it’s
from
a
chicken
bone
or
SARS-CoV-2
is
academic.
And
by
dragging
the
chicken
finger
into
this
discussion
against
its
will,
the
majority’s
reasoning
leaves
the
reader
wondering
if
chomping
down
on
the
famously
boneless
menu
item
known
as
a
“chicken
finger”
is
even
safe
under
this
opinion.
While
it
doesn’t
use
the
word
“boneless”
—
now
a
warning
that
the
food
might
contain
bones
—
folks
generally
expect
chicken
fingies
to
arrive
sans
bone.
It’s
a
question
with
some
significant
implications
for
the
parents
of
Ohio
as
the
dissent
highlights:
The
question
must
be
asked:
Does
anyone
really
believe
that
the
parents
in
this
country
who
feed
their
young
children
boneless
wings
or
chicken
tenders
or
chicken
nuggets
or
chicken
fingers
expect
bones
to
be
in
the
chicken?
Of
course
they
don’t.
When
they
read
the
word
“boneless,”
they
think
that
it
means
“without
bones,”
as
do
all
sensible
people.
That
is
among
the
reasons
why
they
feed
such
items
to
young
children.
So,
next
time
you’re
in
Ohio
with
the
kids…
maybe
order
the
hot
dogs.
Ironically,
you
have
a
better
chance
of
knowing
what’s
in
them.
(Check
out
the
opinion
on
the
next
page)
Joe
Patrice is
a
senior
editor
at
Above
the
Law
and
co-host
of
Thinking
Like
A
Lawyer.
Feel
free
to email
any
tips,
questions,
or
comments.
Follow
him
on Twitter if
you’re
interested
in
law,
politics,
and
a
healthy
dose
of
college
sports
news.
Joe
also
serves
as
a
Managing
Director
at
RPN
Executive
Search.